President Trump unveiled one of his top legislative priorities before Democrats take over the House of Representatives: passage of the First Step Act, which would reduce some prison sentences. Though he still must win a tug-of-war within the Republican Party to get that bill through, he has a Plan B — and he doesn’t need Congress for it.
That would be the creation of a White House clemency commission to supplement or replace the Justice Department’s opaque Office of the Pardon Attorney, which critics say is inherently biased in favor of prosecutors.
A new clemency commission can be created without Congress. The idea has support from both left-wing and conservative advocates, who note Trump’s repeated musing about the unfairness of the criminal justice system, including a remark in October that “a lot of people” are in prison for “no reason” and that he was “actively looking” to address that.
Trump has nearly unchecked power to pardon or release federal inmates — an authority he’s already used in unconventional ways, breaking with stingy recent predecessors to give nine early-term pardons or commutations, including the first pardons to currently incarcerated inmates since the 1800s.
“The reason you haven’t seen anything done yet is that there are only 24 hours in the day, and this requires some thought,” said Heritage Foundation scholar Paul Larkin, who advocates a clemency review process headed by the vice president.
Larkin attended a September meeting at the White House hosted by Jared Kushner and Ivanka Trump. Kim Kardashian West joined a dozen reformers around a Roosevelt Room table, where guests discussed commission ideas.
U.S. Sentencing Commission member and New York University law professor Rachel Barkow, who also attended the White House meeting, offered a similar assessment.
“My guess is institutional resources might be focused on the First Step Act, so clemency reform could be on hold,” she said.
“I think the scope [of a new commission] should be to evaluate commutation and pardon requests in the same way that the DOJ pardon office does now, but in a White House unit that is not going to have the perceived or actual bias of the Department of Justice,” said Barkow, a critic of a late-term Obama administration clemency process that reviewed applications from drug convicts, but left many behind bars.
“The president would still have the ultimate say as the Constitution demands, but the White House board could be created so that he gets advice from a bipartisan body with expertise in criminal law from all angles — law enforcement, defense, victims’ rights, formerly incarcerated people, etc.,” she said, likening it to “the Ford Commission, which gave President Ford advice on which people who dodged the draft should be pardoned.”
Mark Osler, a University of St. Thomas law professor also involved in talks about a commission, doesn’t expect the clemency board to be used as a Plan B but rather as a second step: “I suspect it will get more attention once the First Step Act is dealt with,” though he declined to say if he’s been in touch with the White House.
“It’s important to reform the clemency process, and I think the project will come to the front of the agenda when President Trump wants to or does grant more clemencies. The September meeting was a great start,” he said.
A White House spokesman did not respond to a request for comment.
The pending First Start Act would, among other reforms, expand good-time credit, allow judges greater sentencing flexibility, and retroactively shorten some crack cocaine sentences. But it wouldn’t reduce many already imposed terms. Sen. Lindsey Graham, R-S.C., recently predicted it would get 80 votes if Senate Majority Leader Mitch McConnell, R-Ky., allows a floor vote.
Amid uncertainty over the bill’s fate, some advocates have recommended greater unilateral action to a potentially jilted Trump.
“Now is the perfect opportunity for President Trump to show Senate Majority Leader Mitch McConnell who’s the boss,” CAN-DO Foundation founder Amy Povah said recently. “He can commute the sentences of hundreds, if not thousands of prisoners who would qualify for an immediate release if First Step passes with one stroke of the pen.”
